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FDA releases final guidance on menu labeling - new compliance date of May 2017 expected

The Food and Drug Administration has released its final guidance for industry on compliance with federal menu labeling laws. This highly anticipated document provides answers to many frequently asked questions and addresses topics such as covered establishments, alcoholic beverages, catered events, mobile vendors, grab-and-go items, and record keeping requirements. It is designed to provide clarity on the menu labeling regulations issued in 2014.

In 2010, Congress passed a federal menu labeling provision requiring restaurants and similar retail food establishments that are part of a chain with 20 or more locations doing business under the same name and offering for sale substantially the same menu items to provide calorie and other nutrition information for standard menu items, including food on display and self-service food. This law was designed to provide a nationwide standard for menu labeling.

The FDA was charged with promulgating regulations to implement this new law. After review and commentary over several years, during which the FDA received over 1,100 comments, the FDA released final regulations in December 2014, with an initial compliance date of December 2015. (See our coverage here.) Since that time, the deadline for compliance has been twice extended by the FDA as it deals with questions and concerns from the restaurant industry.

In an effort to provide further clarification on the practical application of the regulations, the FDA initially released a guidance document in 2015. Earlier this year, the FDA announced that the enforcement of the menu labeling regulations would be delayed until one year after issuance of the final guidance document. The announcement last week now confirms that the final guidance document will be released in a Notice of Availability this month, with a firm compliance date one year later, or some time in May 2017.

The guidance document provides detailed explanations on a variety of subjects and answers to questions involving a number of specific scenarios or applications that may not have been clear under the final regulations. The following are some of the topics addressed in the guidance document:

Definitions: The guidance provides in one place a list of applicable definitions, including those related to claims, covered establishments, food types and menu items, and labeling and nutrition information.

Covered establishments: The guidance provides more detail on what kinds of establishments are covered by the regulations as well as a listing of specific examples of covered and non-covered establishments. For example, chain food takeout and delivery establishments are covered, but mobile lunch wagons, food trucks and sidewalk carts are not.

Nutrition labeling for covered establishments: This section covers a variety of subjects, including what foods are covered, what labeling is required, what is a menu or menu board, what kinds of marketing materials require calorie disclosures, how to handle situations such as catering, variable items, combination meals or party platters, how to comply with the requirement of having nutritional information available in written form, and information required for items that are self-service or on display. Some of the more interesting items clarified include:

Catering events: The FDA noted that a catered event is likely not a covered establishment at which calorie information must be supplied. For example, a customer who purchases items from a restaurant for a catered event would not have to provide calorie or other nutritional information to guests at the catered event. However, covered establishments that offer offsite catering would have to provide such information for standard menu items listed on their catering menus.

Marketing materials: The FDA provides more guidance on how to determine when marketing material becomes a menu subject to the menu labeling requirements. The FDA will look at whether the material lists the name or image of a standard menu item, the price of the standard menu item and whether the material can be used to place an order. One of the keys appears to be whether the marketing material, such as a coupon, has a telephone number or web address at which an order can be placed. If this information is provided along with the item name and price, then it constitutes a menu and the calorie and other requirements apply.

How to determine nutrient values for restaurant-type foods: This section provides more detailed guidance on how to determine these values, what records need to be maintained, and what sources can be used to determine nutrient values. One key aspect of this section is the FDA’s clarification on the amount of error or variance that is allowed. The FDA refused to provide any specific amount of permissible error or variance, stating that nutritional information must have a “reasonable basis.” The agency specifically declined to apply the 80/120 variance rule that applies to packaged food.

Alcoholic beverages: This section addresses a number of specific issues relating to calorie and nutritional information for alcoholic beverages, including that calories should reflect how the beverage is sold (e.g., by the glass or by the bottle), how to handle beers sold on tap and how to determine caloric values.

Voluntary registration: This section provides further information on how non-covered establishments can voluntarily register to comply with the menu labeling requirements.

Although this guidance seems to be the final step to enforcement of the federal menu labeling law and regulations, legislation currently pending in Congress − the Common Sense Menu Disclosure Act of 2015 − would amend certain aspects of the federal menu labeling law and likely delay its implementation. The law passed the House earlier this year, but has been referred to committee in the Senate. Whether or not this legislation will be enacted into law remains uncertain.

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